Public Bill Committee

[Mr. David Amess in the Chair]

David Amess: As my fellow Chairman said, the Committee may amend the programme order at any stage in its proceedings. The way to do that is first through a meeting of the Programming Sub-Committee, leading to the adoption of an amendment in the main Committee, or secondly by means of an amendment moved by the Minister, providing that no member of the Committee objects. I understand that the Minister will move one or more amendments to the Committee’s order of this morning. They will not be debateable and they will fall if a single member of the Committee objects.

Manuscript amendment made:In the table, line 14, delete ‘2.30 p.m.’ and insert ‘3.00 p.m.’ and in line 19, delete ‘3.30 p.m.’ and insert ‘5.00 p.m.’.—[Mr. Byrne.]

David Amess: We now come to the first evidence session this afternoon. Will Mr. Thomas and Mr. Symonds kindly join us? Gentlemen, without any opening statements, will you kindly introduce yourselves to the Committee?

Steve Symonds:   I am Steve Symonds. I am the legal officer at the Immigration Law Practitioners’ Association.

Richard Thomas:   My name is Richard Thomas. I am a barrister at Doughty Street Chambers. I practice in criminal law and with non-UK nationals within the criminal justice system.

David Amess: Thank you.

Q 39

1 David T. C. Davies (Monmouth): The first question that I had for members of the Law Society was on the provision in the early clauses of the Bill of the maximum sentence of 51 weeks to be conferred on somebody who attacks an immigration officer. What do the witnesses think about that and do they think that 51 weeks is long enough to deter attacks on immigration staff?

Richard Thomas:   Perhaps I can answer that.

David Amess: Order. I wonder whether the technical person could do something about the microphones. Certainly I had some difficulty in hearing, and I believe that other Committee members did too. Please continue to answer, Mr. Thomas, but the Committee would appreciate it if the person responsible for technical matters could do something about the microphones.

Richard Thomas:   The offence under clause 3 that you are referring to is limited to an officer exercising their powers under the detention provisions in clause 2. Clearly if the officer were injured in a way that could amount to any other criminal offence, such as actual  bodily harm or grievous bodily harm, the person could be charged with that and the limits would, of course, be way above the 51 weeks. My understanding is that that offence is limited in its scope and that the concerns that you have would be met by powers already in existence in the criminal justice system.

Q 2

Paul Rowen: Could you tell us what concerns your association might have about the granting of these new powers to immigration officers?

Richard Thomas:   Having looked at what the members of the Committee said on Second Reading, I saw that the issue has not been raised just by yourself. Our concern is that from the 1999, 2002 and 2004 Acts, there have been extended powers to immigration officers. What has not gone on at the same time has been the support provisions that go with that for training officers and ensuring that they have access to the relevant Police and Criminal Evidence Act 1984 training. Those officers are going to be acting in sensitive situations, some politically so and some involving vulnerable clients. Such considerations led to PACE in the first place, to ensure proper faith in and effective use of the justice system; however one looks at this, if those powers are to be enforced effectively, that must be done in the appropriate manner. That happened for the police service with PACE, which provides protection to the police and to those in their custody. At the moment, the powers of immigration officers are extending, but we are concerned that they do not have the appropriate training or legislative structure to act within.

Q 3

Paul Rowen: This morning the Minister and one of his officials said that there was already a degree of interoperability between the various people who work in the ports. Can you tell us about that, from your own and your members’ experience, and whether there have been any particular issues or problems, bearing in mind your answer to the previous question?

Richard Thomas:   To clarify, are you asking whether there have been problems with immigration officers at the ports?

Paul Rowen: No. Let us say customs officers are taking on the role of an immigration officer, a police officer and so on.

Richard Thomas:   My experience comes from the context of the prosecution of immigration offences. My understanding is that the extended number of offences has taken up a huge amount of police time, because there are not enough arrest-trained immigration officers. They have been given more and more powers, which is creating an additional strain on the police services at ports. The police there are not able to concentrate on what they perhaps really want to concentrate on, which is catching the traffickers or the professional criminals involved in border crime. A lot of time is taken up doing things relating to newly introduced immigration offences. So, the problem arising from my answer to the last question is that there are not enough trained officers to do the new jobs. They are being given more and more powers, which they are not in a position to do, and it is placing a strain on the police and taking away from what I imagine the public would really want to see policed.

Q 4

James Clappison: I am quite concerned by what you have just said. Although all offences are serious, there is a lot of public concern and in this place about the really serious offenders, the people traffickers who make big money, work an organised network and are into all sorts of crime. You have just told us that your experience is that the police are being distracted from dealing with such people. How strong is your evidence for saying that?

Richard Thomas:   My experience over the last three years is in dealing with offences in the Crown court and the Court of Appeal in relation to offences mostly brought in with the 2004 Act, but also documentary offences. So, on a weekly basis, I speak to police officers, mostly down at Isleworth Crown court, who have come out of Heathrow. Of course what I say is anecdotal and from my experience, so I limit it in that way, but certainly the concern that the officers have is something that I see on a regular basis.
The other thing that I hear about is that under the “Operation Enforcement Manual” there is a lot of scope for immigration officers not being able do their own work, but having to do it within police teams. That is taking resources away from the police. Albeit anecdotal, it is something that I am confident is a correct view of the circumstances.

Q 5

James Clappison: So team work is not working as well as one would ideally hope for.

Richard Thomas:   I know that in recent years the police have been working on the team work, and that they have a specified role; there is a job within the police for liaising with the immigration officers over roles that overlap. I am aware that the police are making that effort. However, clearly, there are only finite resources, and arresting five people on Saturday night for arriving without documents—they are easy targets—produces a vast amount of paperwork for those officers. Immigration officers have to arrive, carry out the arrest and go back to the police station and process it, which takes up their whole evening. They are not then able to focus on what may be perceived as more serious crimes—although everything is serious, of course.

Q 6

Liam Byrne: Does your anecdotal experience point to the need to strengthen the resources we are investing in the immigration service alongside the provisions in the Bill?

Richard Thomas:   Yes, absolutely.

David Amess: We now move to the next part of the Bill—detention at ports.

Q 7

Damian Green: I am struck that in your evidence you talk about training, guidance and so on. Do you think that the immigration officers at ports should not be given the extra powers? Is it as stark as that?

Richard Thomas:   If immigration officers were to be given these powers, the only benefit would be if they were properly trained. If there were to be specialist people at ports who had a specialist understanding of the needs of foreign nationals who are entering and of the certain circumstances that arise, there would be a benefit from it. There is not a benefit from creating an ad hoc further police service at the ports when those people do not have the appropriate training.

Q 8

Damian Green: Do you think that, as of now, the immigration officers who would be designated under the terms of this measure do not have the proper training? Is that what you are saying?

Richard Thomas:   No.

Q 9

Damian Green: To go on from that, you make a point in your written evidence about children. I would like you to expand on that. What are the particular problems relating to children which, in your argument, would be made worse by these extra powers?

Steve Symonds:   There is a specific issue about children in relation to section 11 of the Children Act 2004. That sets out that various agencies have a duty of care to the child’s welfare. Immigration officers are excluded from that. Now there are increased powers where children are again going to come into the hands of immigration officers; I am thinking of the first clauses in this Bill. It may be children who are detained under the powers in clauses 1 and 2. They are not, at present, going to have the statutory protection under section 11 and it seems to us that they should do.

Q 10

Paul Rowen: In terms of what you have just said, what are the implications for the immigration service if it is actually going to detain children at ports? What do you think needs to be added to this Bill that is not in it now?

Steve Symonds:   We would like to see an amendment that incorporated the immigration service within those bodies mentioned in section 11 of the Children Act. That would be a very big step forward because it would mean that any immigration officer would have to receive training around issues that include trafficking matters. They would have to be concerned about the welfare of children passing through ports as it would come within their statutory duties. I think that would be a huge step forward and, because of that, there would be knock-on effects in terms of the training and guidance issues that have more generally been discussed.

Q 11

Paul Rowen: The Bill talks about designated immigration officers. In your experience, is it possible to designate certain officers at a busy port that will deal with young people and therefore ensure that they get the training?

Steve Symonds:   The problem with that is that obviously it would be possible to designate certain officers to have particular training in relation to children, but the starting point is that immigration officers per se, and therefore those designated officers, are not within those agencies that are covered by section 11. With respect, the very vague clause 1 refers only to officers
“who the Secretary of State thinks are fit...for the purpose, and suitably trained.”
We do not think that is at all adequate.

Q 12

Liam Byrne: May I infer from your evidence that it is your view that these powers should be rolled out only in line with the provision of specialist training, and that as a general principle, you would support efforts to ensure much stronger, clearer, sharper oversight of the immigration and nationality directorate and the immigration services’ operations?

Steve Symonds:   Yes.

Q 13

Chris Mole: Do the witnesses have a view as to whether anything needs to be done to increase the certainty that an applicant presenting themselves as a minor is indeed a minor?

Steve Symonds:   I know that, even as we are discussing the issue now, the Immigration Law Practitioners’ Association is sponsoring an investigation into the issues around age disputes. It is outwith the terms of the Bill. I know that it is a difficult and contentious issue, but it seems to us that the starting point is that, if you have someone who presents themselves as a child, unless there are good reasons to think that they are not a child, one should treat them as a child.

David Amess: We now move on to biometric registration.

Q 14

Stewart Jackson: I have a couple of questions, starting with a general question. Do you take issue with the principle of biometric identity documents, or with some of the practical details? Also, if you do oppose such documents, would you agree with NO2ID, which basically suggests that people coming to these shores will be unnecessarily criminalised by them, or do you perhaps see them as racially divisive, which is the argument that Liberty uses? What is your view, generally?

Steve Symonds:   Broadly speaking, we support the position of Liberty, which we described in the memorandum that we gave to the Committee. We certainly do not have the expertise to comment on the details of biometrics. We also appreciate that, to a degree, this is a past debate, both in terms of the general move internationally in relation to people travelling on documents that will have biometric data about them, and also in relation to the passing of the Identity Cards Act 2006.

Stewart Jackson: Mr. Thomas?

Richard Thomas:   I do not have anything to add on that subject.

Q 15

Stewart Jackson: Clause 8(2) states:
“The regulations may include provision permitting the use of information for specified purposes which do not relate to immigration.”
The emphasis is on the last five words.
What is your view on that? What do you think that the Government have in mind? We are talking about documents not relating to immigration.

Steve Symonds:   Our view is essentially a view that we have in relation to a number of provisions here. The measure is far too broad—I do not know what it means. I am concerned that powers such as this, which are so open-ended, should be passed. Obviously, I know that it is a matter in front of the Committee, but the fact is that the ordinary situation is that regulations are not amended when they come before the House. We certainly think that the regulations in relation to these provisions should be capable of being amended, so that one could have some scrutiny of the purposes to which it may be thought they should be put.

Q 16

Stewart Jackson: Would you also agree that clause 5(2)(k) is in a similar vein? It will
“permit the Secretary of State on issuing a biometric immigration document to require the surrender of other documents.”
Would you say that that is in a similar category to clause 8(2)?

Steve Symonds:   Yes.

Richard Thomas:   It is in a similar category to a number of matters, where certain provisions in the Bill are being used to extend powers outside the scope of immigration. If you look back at some of the detention provisions in clause 2, they mean that an immigration officer can arrest anyone who is liable to be arrested by a police officer. That is outside the scope of immigration and it seems to be a sort of trickling, creeping effect. The other problem will be that, if this information has been requested and is perhaps required for criminal enforcement, there will be great difficulties in using that information because it has been gained in this way, and so these creeping legislative provisions may not do what they are intended to do and may be pretty worthless.

Q 17

Kerry McCarthy: Do either of you in your work come across cases when foreign nationals have real trouble proving their identity—for example, when they are trying to access public services in the course of their employment? Do you think that the use of biometric registration would help them to get around that problem? If you do not think that biometric ID cards are the answer, what do you suggest would help to solve their problems?

Steve Symonds:   We certainly do see those problems and we agree that something needs to replace the 16 possible documents to which the Minister referred earlier and which might have to be presented. It is quite true that many documents are often presented in a tatty fashion and probably would convince nobody of right mind that they demonstrated the entitlement that was put forward.
One of the problems with the documents that will need to be looked at in due course is what would happen to someone whose leave had perhaps come to its end and who had made an outstanding application. How would the document be updated to ensure that it still demonstrated their entitlement, despite the fact that the time of the leave for which they received it had gone? There are serious issues around that. They will be looked at quite carefully because someone could have leave to remain for, say, three years and have made a valid application. It may be one that was invited under the rules.

Q 18

Kerry McCarthy: That is the problem that people already have with the documentation: they have to prove their leave to remain at the moment.

Steve Symonds:   Absolutely.

Q 19

Kerry McCarthy: It would not be an additional problem.

Steve Symonds:   No. Obviously, one will take the opportunity to address it if it is to be the means forward of solving the problems.

Q 20

Damian Green: I am struck by the second of the three real problems. Given your points about the vagueness and all-encompassing nature of many of the powers taken, you imply that there is a danger of breaching various international conventions to which we have signed up, such as the 1950 convention and the refugee convention. Will you expand on that?

Steve Symonds:   Clause 16 introduces reporting and residence requirements. At the moment, there is no limit on how they may be put into effect. There is no purpose that would control how they were put into effect. The range of people that they could affect is vast. Among others, we have highlighted refugees, people on highly skilled migrant working programmes and international students. A great range of people could be required to report, yet if someone was required to report weekly or even daily, that would be within the terms of the Bill, regardless of whether there was any real need to ask the person to report in that way and regardless of the interference with article 8. I am sure that there would be worry if international concerns were used to a great extent. I could see legal challenges in relation to that. Obviously, that was not the Bill’s intention, but if we were to be that intrusive on someone’s private life, no doubt it would arise.

Q 21

Damian Green: Would it make it less likely to be challenged under article 8 if there were specific restrictions on the classes of people to whom the Bill could apply and/or reasons for which they could be applied?

Steve Symonds:   If Parliament were to explain in the Bill to whom they were to apply and for what purpose, obviously if they applied to a particular person for a particular purpose, that would be likely to deal with most possible challenges.

Richard Thomas:   The crucial aspect would be to say, “In the following circumstances, it may be appropriate to pass it,” and to have something positive. As a barrister who would want to be challenging something, I would find it far more difficult if certain provisions had been allowed for and they were the circumstances in which the controls had been placed.

Q 22

Liam Byrne: Does the European convention on human rights provide a measure of protection for the exercise of powers within the Bill? Would those protections then fall away if Britain were to withdraw from the ECHR?

Steve Symonds:   The ECHR will provide some protection in relation to powers in the Bill in the way that I have described. However, that will only be protection for those who have adequate access to legal advice and representation and, thus, can access their protections. That will not necessarily include many of the people who may be affected under the terms. Yes, if Britain were to withdraw from the convention, that would remove any protections that the convention might provide.

Q 23

Paul Rowen: Notwithstanding what you said earlier, what document do you think it is reasonable for the Secretary of State to hold—or to hold on to, as it says in the Bill—for future use?

Steve Symonds:   That depends on the individual concerned.

Paul Rowen: We would be dealing with an immigrant—possibly an illegal immigrant—or an asylum seeker. From your experience of working with them—

Steve Symonds:   In the case of an illegal entrant who did not have leave—or who had leave for a period of only six months under strict provisions because article 3 prevented his removal and for no other reason—one might expect the immigration service to want to retain his passport. It might be considering removal in what in its terms was the near future, and if a passport were available it would want to hold on to it in case it went missing. That is what happens at the moment.

Richard Thomas:   On the other hand, it might be that somebody had entered under a business agreement—that was his entry condition—but the officers seized business documentation that he had brought with him in order to have a quick look at it and make inquiries about the state of his business. That might not be appropriate. There is a distinction between immigration officers exercising powers under the Act and immigration officers having powers in some nebulous form.

Q 24

Paul Rowen: The court already has the power to withhold a passport.

Richard Thomas:   Yes. The problem is that they get lost. Time and again, our members see documents being lost within the Home Office.

Q 25

Paul Rowen: Presumably, if the power that this Bill gives immigration officers to search for nationality documents is exercised, then the likelihood of that happening will be reduced.

Richard Thomas:   The likelihood of the documents being lost?

Q 26

Paul Rowen: I am trying to tease out what, in your view, is reasonable documentation for immigration officers to hold. They have the power; it is stated here in clause 40. In your view, is specifying the documentation here all that is needed?

Richard Thomas:   My opinion is that it will become more acceptable for an immigration officer to want to hold on to documents relating to an individual’s immigration position. The concern—especially about clause 40—is that you can be stopped for any sort of arrestable offence if an immigration officer says, “I think that you are not British.” On what grounds is he deciding that? He now has powers to search your property for immigration documents even if you are arrested for a traffic offence, such as having a rear light that is not working. That starts to create the sorts of concern about aggressive and overarching policing that led to PACE in the first place.

Q 27

Paul Rowen: Will it say that there is a suspicion of money laundering or trafficking? Presumably it would have to go further.

Richard Thomas:   That would be different; those are arrestable offences. I imagine that police officers would have to exercise those powers, including getting a warrant and the like. It is all very well to give immigration officers powers, but if they do not have the administrative back-up and training or the manpower to do anything about it, then nothing is going to come of it.

David Amess: We now turn to the treatment of claimants. I think that Mr. Green has the first question.

Q 28

Damian Green: I do have one on clause 16, but it is on that issue. In your written statement you have understood clause 16, as I had done, to be essentially toughening powers against serious criminals. That is because we have read the regulatory impact assessment and that is what it mentions. This morning, the Ministers told us that we should look at it in the context of protecting unaccompanied asylum-seeking children. I was genuinely puzzled at that difference of interpretation. Can you give me your interpretation?

Steve Symonds:   I have had the advantage of the Minister explaining what that was for and those were the two categories he kindly mentioned to me and broadly those are the reasons that he also gave. I have also had a briefing from the Home Office which suggested that these were initial targets and so it might well be that these were expanded beyond the two categories that have been identified. Certainly on the face of the provision there is nothing to stop that.
So far as the protection of minors is concerned, it would seem to me that it would be a far better way to protect minors to go back to the matters raised under section 11. That would help protect children. What should be happening is that unaccompanied minors should be in the care of social services. There should already be an authority that has close contact with them so those concerns ought already to have been addressed.

Q 29

Damian Green: That is a very interesting point. To move to the other side of it, the criminal side, the serious criminals, you seem to imply that actually this could be almost anyone. For people who come under the highly skilled migrant programme, the people who come under the points-based system, this is an all-encompassing set of powers. Is that what you—

Steve Symonds:   It is. You go back to Section 3(1) of the Immigration Act 1971. As on the face of the clause here, it does apply to anyone with a limited leave to enter or remain. That is a vast body of the immigrant population here.

Q 30

Damian Green: How many people are we talking about roughly?

Steve Symonds:   I have absolutely no idea. We are talking about hundreds of thousands of people.

Damian Green: Thank you.

Q 31

Paul Rowen: On clause 17, support for failed asylum seekers, are you happy that those particular clauses close any loophole?

Steve Symonds:   I am satisfied that the lacuna we understand it is meant to close will be closed by those provisions, yes.

Paul Rowen: Thank you. That is all.

David Amess: We now turn to other enforcement issues and I think Mr. Damian Green has the first question.

Q 32

Damian Green: This is an area where new powers are being extended to immigration officers so we can take the question and answer about training and guidance and codes of conduct as read. I assume that is what you would say. Do you think there are specific points to make in relation to these specific powers to seize cash and so on?

Richard Thomas:   The Proceeds of Crime Act 2002 was brought in to target serious crime. The understanding was that it was difficult to prosecute people but that serious criminals can be hurt by having access to their funds curtailed. Therefore civil forfeiture methods were brought in where funds could be seized on a balance of probabilities. It is therefore much easier to target those serious criminals. That is why the recovery of cash provisions were there in the Proceeds of Crime Act.
Extending these provisions to the possible proceeds of someone who has been working in this country, such as working in Tesco, doing a perfectly legal job which they are not entitled to is not something I think the Proceeds of Crime Act was designed to do.

Q 33

Damian Green: If you are making the point that there will be lots of people who are on relatively low wages who will have what little they have confiscated, is it your experience that the people most responsible for that illegal working are the employees or the employers?

Richard Thomas:   The people who are responsible for facilitating this are the employers. From my understanding, and I put it in context as representing people who have been prosecuted for making false declarations, they have worked in the NHS for two years, doing a responsible job, being a nurse and they made a declaration at the beginning that they could remain indefinitely. That is something they did not have.
In my experience, the people they work for must be complicit in the fact that those people are working. Obviously, there are huge pressures—they need someone to work and there is someone there willing to work. Some treat them well and are glad to have an employee. Large number of others exploit the workers. In these circumstances I would have more welcomed provisions to extend the criticism and the offences against the exploiters rather than those who are often exploited.

Q 34

Damian Green: That is very interesting. I am sorry to be anecdotal about a constituency case, but one of the longest lasting overstayers and illegal workers who ever presented himself at a constituency advice bureau had genuinely convinced himself that he was legal because he had spent five years working as a cook for a local NHS trust and so thought that the Government somehow must know that he was here and would have approved it.

Richard Thomas:   These people have national insurance numbers and have paid tax. People who spent five years paying tax and national insurance are being sent to prison. It seems absurd that there are extra powers to target that. If that is a concern and if illegal working is something that the Bill wants to target, it may be far more efficient, albeit harder in the short run, to target the employers.

Q 35

Stewart Jackson: I want to be clear about what you are saying. Some of your comments are a little confusing. You use the term “perfectly legal jobs”. Clearly they are not perfectly legal.

Richard Thomas:   May I just clarify that? To work on the check-out at Tesco is a legal job. I am saying that the person filling it does not have the right immigration leave to fill it.

Stewart Jackson: They are not legally employed.

Richard Thomas:   No, I did not say that. It is a legal job.

Q 36

Stewart Jackson: Let us not get into a dispute over the words.
Are you saying that in your opinion, as a matter of principle, the targeting of illegal activity in respect of employment should be solely aimed at people who “exploited”—in other words, employers? Or are you saying that there should be a balance? You seem to be implying that there is no causal link: employers are employing people and it is illegaland there is no responsibility on the part of the employees. Could you clarify that?

Richard Thomas:   Obviously I cannot go as far as to say that people who are caught working illegally should not face punishment. I cannot go that far, albeit my experience often is that it seems an improper use of public money to imprison someone who has been paying tax and national insurance. I understand your point, but it is not solely the employers who should be targeted. On the question of whether employers should be targeted, if we are looking at a balance it should swing further towards targeting the employers rather than picking up the easy targets. I have to accept that there has to be a balance.

Q 37

Stewart Jackson: Far be it from me to support the Government, but the Whip is not here. What other sanction can the Government use in respect of being focused solely on employees if they cannot use the sanction contained in the clause?

Richard Thomas:   Removal. This is my answer to a number of possible criminal offences. If someone is picked up and they are working illegally, there are two options. First, they can be taken to the magistrates court, go through the committal proceedings, go up to the Crown court, perhaps have a trial and serve a sentence—all at vast public expense—and then be removed. Or they can simply be removed. I would say that just removing someone, if appropriate, after the appropriate procedures have been carried out, would be more effective than the criminal justice system.

Stewart Jackson: Thank you. That is very clear.

Q 38

Liam Byrne: May I infer from your remarks that you would support measures to shut down access to things like national insurance numbers or, indeed, other public services or jobs in the public sector for those who are here illegally?

Richard Thomas:   The position has to be that those who are accessing national insurance numbers and other matters are inevitably using false documents. If someone is not entitled to work, the giving of a national insurance number creates huge confusion. People often get a national insurance number, get a job and, as in the example that was given by Mr. Green, feel that they have invested in society and become part of it. Five years down the line, they find themselves arrested. Clarity would be of assistance.

Steve Symonds:   Broadly speaking, we would support such a measure, subject to many of the comments that were made on Second Reading. Someone has to recognise the immediate effect on very large numbers of people, many of whom are effectively settled here and working. What will happen to them? How will they be left? If the answer is that we are going to leave them on the streets and make them destitute, we would not welcome it.

Q 39

Liam Byrne: But you would support their removal?

Steve Symonds:   Subject to their particular circumstances. It would be appropriate to remove some of them, but it might not be appropriate to remove others.

Q 40

Liam Byrne: Measures to make it harder for someone to obtain something such as a national insurance number illegally would be welcome?

Richard Thomas:   I cannot sit here and encourage someone to obtain a national insurance number illegally.

Liam Byrne: Thank you, that is very clear.

Q 41

Paul Rowen: Currently, asylum seekers are not allowed to work, even while their appeals are going through. Would you support moves for them to be able to work and be less of a burden on the state?

Steve Symonds:   Yes, very much. We have long supported that.

Q 42

Paul Rowen: I shall now turn to clause 22, particularly subsections (2) and (5). The provision relates to the disposal of property whose ownership is uncertain. Where the courts decline to make an order, the Secretary of State can decide on a whim to dispose of the property. Do you think that that is a reasonable power for the Secretary of State to have?

Richard Thomas:   I read these provisions and found them slightly bewildering. I think that they are another example of vague provisions. I am not quite sure what this aspect of the Bill is aimed at. I do not know whether you had the assistance of the Home Office to explain it to you this morning. Although it follows the development sections of the Proceeds of Crime Act 2002, it is not aimed at civil property forfeiture; it seems to be aimed at property that happens to come into the possession of an immigration officer during an offence. I am not clear about what it is directed at. The short answer to your question is that I would not support any uncertain powers of the Secretary of State.

Q 43

Kitty Ussher: I want pick up on a couple of points that have arisen. I should like to consider sanctions on employers of people that are here illegally. You are the lawyer; am I right in thinking that clause 23 puts sanctions on employers?

Richard Thomas:   There are powers; I am not saying that there are not. The first powers against employers were brought in under the 1996 Act.

Q 44

Kitty Ussher: The explanatory notes say:
“Clauses 23 and 24 cover the arrest of individuals who knowingly employ an illegal worker”
and so on.

Richard Thomas:   Absolutely. I make no criticism of any provisions that allow for that. I was directing my comments at the question of the balance and where it should lie.

Q 45

Kitty Ussher: Do you think that there should be greater powers of enforcement over employers?

Steve Symonds:   There should be more effort to exercise the powers that are there. We are not criticising the particular additions that you mention, but we are saying that, rather than using the measures that you have already got plus those proposed here to go out and target exploited workers disproportionately, let us start using the powers to deal more with exploitative employers.

Q 46

Kitty Ussher: I am saying that there are new, additional powers in the Bill to target employers. Do you agree?

Steve Symonds:   Yes.

Q 47

Kitty Ussher: Do you think that they are adequate?

Richard Thomas:   I am afraid that I cannot—

Q 48

Kitty Ussher: You rightly raised the interesting question of national insurance numbers. A few minutes ago, you mentioned that it was possible to obtain national insurance numbers using forged documentation, which you obviously would not support. Do you think that if people had compulsory identity cards, whether biometric or otherwise, that would prevent them from getting national insurance numbers fraudulently?

Richard Thomas:   The sophistication of the techniques that are used in making forged passports and, no doubt, forged identification documents is astonishing, from what I see. I do not know what technology is available for the biometric testing and I am trying to adopt a neutral position on that.
Whatever documents that you have—whether those are certain ID documents or certain passports—first, I do not know what the technology is for ensuring that those cannot be forged and, secondly, to what extent those things are properly applied. We see passports being used by employers to take on employees, when they have had a quick flick through them after being handed over. There has to be a will to properly enforce it. I see where your point is going.

Kitty Ussher: I am asking you for a yes or no, really.

Richard Thomas:   An effective biometric system no doubt would. But I put that in the context of the objections that have been made in the broader sense.

Kitty Ussher: But you think that it would help in preventing illegal national insurance fraud. Yes or no?

Richard Thomas:   If you could just give me a moment.

Q 49

Kitty Ussher: Perhaps we will come back to that. I note your reluctance to give a yes/no answer.
Finally, you have said that you have general concerns about the vagueness of some of the provisions in the legislation. But I have noticed that, on a number of occasions in the last half hour, when asked by Committee members about how immigration officers should react in certain circumstances, you have clearly made the point that it depends on the type of crime and on the situation and it depends on this or that. I put it to you as a logical point that, if some discretion is required, the Bill cannot legislate for each individual circumstance. Therefore, it necessarily has to be vague.

Richard Thomas:   There is a distinction to be made between discretion on behalf of the Secretary of State, which we think is very important, and discretion on the part of immigration officers acting at port. The levels of ability are mixed. When you are talking about immigration officers at port, I believe that there should be a good deal of legislative support. That is the reason why the Police and Criminal Evidence Act 1984 was brought in. Providing a strict legislative framework in which police operated protected the police and those in their custody, or those involved with the police. I support a strict framework for immigration officers to act within, and I am sure that Steve would as well, and discretion on behalf of the Secretary of State.

Steve Symonds:   I think that part of the answer comes back to something that we discussed earlier. If you have clear purposes that are clearly defined, the way in which the immigration officer needs to act to meet the specified purpose may differ from case to case, but the fact that there is a clear purpose in the provision clearly guides the immigration officer and ensures that there is some degree of regulation or oversight over what they are doing.

Kitty Ussher: Of course, the legislation states that the Secretary of State can make regulations, which would presumably give the framework that you were looking for.

Richard Thomas:   The problem with that, for example—looking at the words “The Secretary of State may make regulations”—was that, in relation particularly to serious crimes under the 1999 Act, the regulations that actually came out dealt with everything from possession of a nuclear bomb, down to shoplifting and theft. That is where the concern is. When something says “The Secretary of State may make regulations”, the actual regulations are often very different from what was envisaged in the Bill.

Q 50

Kitty Ussher: I am sure that the Secretary of State will listen to that.
Concerning your general point on training, which probably applies throughout the Bill, do you not agree that you do not need to legislate for improving training standards? It could well go in parallel with what we are discussing today.

Richard Thomas:   Absolutely not. I noted that, on Second Reading, Paul Rowen said:
“The real problems with immigration are administrative, not legislative”—[Official Report, 5 February 2007; Vol. 456, c. 618.] 
A lot of the administrative stuff, I completely agree with you, can act separately from the legislation. Improved training of officers can do that. We are concerned about legislation moving ahead without the training.

Kitty Ussher: Thank you.

Q 51

David Davies: Does the Immigration Law Practitioners’ Association accept that, broadly speaking, too many people are coming to this country claiming to be asylum seekers when they are not and that the Government have a right and a duty to try to tackle this?

Steve Symonds:   The answer to that is evidently yes on both counts. We would maybe differ as to how large the number is of those who should not be, but yes, obviously the Government have a duty in relation to that.

Q 52

David Davies: Does the association not also accept, then, that if asylum seekers are given the right to work—or rather, if those who claim to be asylum seekers on arrival are given the right to work—that will simply encourage more people to come here claiming to be asylum seekers and make it even harder to direct the help that all of us agree should go to those who are genuinely fleeing persecution?

Richard Thomas:   If asylum seekers are not allowed to work, what is left is that everyone is just closing their eyes to what is actually happening. It seems absurd to—I am sorry, you are looking surprised. The reality is that the London economy is supported by vast numbers of people who are working illegally. No doubt if asylum seekers could be allowed to work—if they had the possibility of working, we are not saying that people should be forced to—it may be better for people to work within the system, pay their taxes and not be as much of a burden on the state, as I think your words were.

Steve Symonds:   At the same time you must look at the cost of the National Asylum Support Service, not just in terms of the sheer spend per se but in terms of shifting people around the country, often repeatedly, causing immense distress and disruption in relation to their asylum claims. It often leads to their claims not being properly dealt with because they do not have proper access to their lawyers and cannot keep in touch with the system. Those are all costs that go with that and might be addressed if those people, or some of them at least, were able to support themselves.

Q 53

David Davies: Do you not accept that that will surely increase the number of people coming into this country and claiming asylum?

Steve Symonds:   Not necessarily, no.

Richard Thomas:   No, I don’t think so. If people want to come to this country and work, there are ways of doing so.

David Davies: But making it easy, by making it legal for people to work, will surely increase the number of people who want to come.

Steve Symonds:   It certainly is not easy to get to this country to claim asylum. Many people die trying to do so, and many others have horrendous experiences in the process of trying to do so.

David Davies: So we should try to discourage that from happening.

Steve Symonds:   I agree with that, yes.

Q 54

Stewart Jackson: I am puzzled that the anecdotes that you give, Mr. Thomas, do not seem to be substantiated by any statistical foundation whatever. The Government, in many dozens of written parliamentary answers, have been unable to tell us, as has been officially confirmed by the Home Office, how many illegal immigrants are in this country, how many people are working, how many failed asylum seekers there are and where they are dispersed to. With all due respect, it is supposition and anecdote that you are basing your arguments on.

Richard Thomas:   Absolutely. I said right from the beginning that the answers that I gave on personal experiences would be from exactly that—personal experiences. I also agree with you about the lack of statistics, which is something that we have a difficulty with in conducting things as a practitioners’ association. What I am saying is therefore to an extent anecdotal, and you will no doubt give it whatever value you think. I agree with your main point.

David Amess: We come now to the subject of the deportation of foreign criminals, and I think that Kerry McCarthy has our first question.

Q 55

Kerry McCarthy: You make some points in your submissions about the human rights of people who might be subjected to these provisions on the automatic presumption of deportation. What balance do you think should be struck between the need to protect the public from such individuals and any rights that they may have?

Steve Symonds:   To start with the premise in your question relating to human rights, we are happy that the balance is as it should be in international law, and it lies essentially with the European convention on human rights and to some extent the refugee convention, although that is limited in the protection that it will give to people who have committed serious criminal offences.

Q 56

Kerry McCarthy: For example, if somebody who had indefinite leave to remain committed a very serious offence, do you not think that there are circumstances in which their rights as a refugee should be disregarded because of the seriousness of what they have done?

Steve Symonds:   Their rights as a refugee maybe should be disregarded, because under the convention, in particular circumstances, if they are a danger to the community, they are not entitled to protection under the refugee convention. However, under the European convention, they are entitled to not to be removed to a country where they would be at risk of torture or degrading treatment.

Q 57

Kerry McCarthy: What should be done with somebody who is a danger to the community because they are likely to reoffend, but who is given asylum on the basis that they would be subject to such treatment? Are you saying that they should be able to rely on the convention and remain in this country?

Steve Symonds:   Our position is clear. We are satisfied that the United Kingdom was right to sign up to the European convention and is right to accept, as it must being a convention party, that we should not remove anybody to a place where they face torture.

Q 58

Kerry McCarthy: Do you envisage a situation in which the gravity of what they have done would override that?

Steve Symonds:   No.

Q 59

Kerry McCarthy: On the interaction between the clauses before us and other legislation, you have been quite critical of the need for extra legislative provisions. Will you say a little more about that?

Steve Symonds:   As I am sure that Committee members are aware, in April last year, the issue of foreign national prisoners came very much to the forefront of the debate. Since then, the Government have changed the immigration rules so that there was a presumption of deportation. It is now much harder for someone convicted of a criminal offence to resist deportation. The circumstances that enable somebody to resist are exceptional ones and we see no need, therefore, to extend the provisions in this way, which will remove the possibility to exercise any discretion in a very large number of cases, no matter how exceptional they might be. In fact, we see that as an abrogation of duty on the part of the Executive.

Kerry McCarthy: We are pushed for time and so I shall leave it there.

Q 60

Paul Rowen: On exceptions, clause 29(3) deals with children. What is your view on the fact that the provisions focus on the date of conviction, rather than on the date of the commission of the offence?

Steve Symonds:   We revised our comments in the memorandum to say that, as explained, we object to the provisions in their entirety, but that if we are to have them, we do not see the purpose of focusing on the age on the date of the conviction. We think that the relevant age is that on the date when the person committed the offence.

Q 61

Damian Green: On this subject, you said that the word “automatic” is a misnomer and that it is in effect an attempt to remove from the Home Secretary responsibility for taking such decisions. What would you prefer to see instead?

Steve Symonds:   I noticed that in the debate, for the most part, the Minister referred to the provisions as a mandatory deportation. That is what they are. They mandate that the Secretary of State must make the deportation order. It does not mean that the deportation happens or even that the order is made. It just means that he ought to do so.

Q 62

Damian Green: Clearly, this matter has been a huge problem for successive Home Secretaries. Do you think that the clauses before us would improve the situation?

Steve Symonds:   No. In one respect, they would lead to a serious deterioration. The upshot of the provisions in clauses 30 and 32 dealing with the timing of a deportation order and detention respectively might be that, while the Secretary of State considers whether to make a mandatory deportation order, someone could serve time way beyond their sentence, which would clog up the prison system and lead to the sorts of bottlenecks mentioned in the debate. There would be no comeback on that because the Secretary of State will be lawfully entitled to do that under the provisions. In some ways, the provisions make the system worse.

David Amess: We have one minute left.

Q 63

James Clappison: Is it right that, under clauses 30 and 31, the Secretary of State cannot deport someone if they are appealing, or have time left in which to do so?

Steve Symonds:   Yes, as long as he does not certify—

Q 64

James Clappison: Do you think that the Bill would be improved if there were to be a time limit on that, beyond the period of appeal?

Steve Symonds:   We would see that as a modest improvement.

David Amess: Order. I am very sorry, but that brings us to the end of the time allotted for the Committee to ask questions of our first panel. I invite Mr. Thomas and Mr. Symonds to leave—perhaps they would like to go to the back of the room—and our next set of witnesses to come along. We were expecting one witness from the Immigration Advisory Service, but I am delighted to say that we have two. The second witness is Nicole Shepherd, who is a tribunal review councillor, higher appeals unit with IAS. With no opening statement, would Mr. Best please introduce himself?

Keith Best:   I am Keith Best, chief executive of the Immigration Advisory Service. We are the largest national charity giving a legal advice and representation service to immigrants and asylum seekers. We have 20 offices around the United Kingdom and some 300-plus staff, and we are opening offices overseas as well. On my right is Nicole Shepherd who, as you have heard, is a tribunal review councillor. When an appeal has gone before the asylum and immigration tribunal and we are seeking a reconsideration of the dismissal of that appeal, she handles the reconsideration issues.

Q 65

David Davies: I have a specific question to ask, but perhaps I may start with a slightly more general question, which I put to the previous witnesses. Does the IAS accept that there are too many people claiming to be asylum seekers who are not genuinely fleeing persecution, and that the Government have a right and a duty to tackle that?

Keith Best:   If you look at the question in the international context, it cannot be right that there are many people who claim asylum but who are not found, on a fair adjudication system, to come within the provisions of the 1951 convention. One of the problems is that the 1951 convention is fairly tightly drawn. I shall not reiterate the provisions because you will all be very familiar with them. However, they mean that some people in a war-torn area, seeing loss of life all around them, do not fall within the definition. They might be entitled to humanitarian protection or discretionary leave, but will not be recognised as refugees under the convention. That is not to say that they are bogus—an unfortunate adjective that has been used in the past—or that they are trying to flout the system. It means that they are in genuine fear, but they are not covered by the definition.

Q 66

David Davies: So, to be clear about the answer to the question, it is the view of the IAS that there are not enough people coming to Britain and that more people are entitled to claim asylum seeker status than currently do so?

Keith Best:   No. You are putting words in my mouth. The United Kingdom is one of many signatories to the 1951 convention. It is reasonable to assume that any Government in the UK will apply the provisions of the convention in good faith and will apply the adjudication system individually to each applicant for asylum.
Those who may claim asylum are people who are outside their own countries of origin and, necessarily, within the United Kingdom. In limited cases, somebody might go to a British post overseas to claim asylum and be accepted—Aung San Suu Kyi or somebody like that, for example. I cannot think of many others who would be able to do that; normally, they would have to get to the UK. The present Government have consistently tried to make it very difficult for anybody to get to the UK. Our objection to that is that it is discriminatory against the genuine asylum seeker, because there is no attempt at that stage to try to ascertain whether somebody comes within the provisions of the 1951 convention or not.

Q 67

David Davies: So it is too difficult to get to the United Kingdom at the moment?

Keith Best:   It is very difficult to get to the United Kingdom. Deterrence measures do not work because unfortunately they do not work on the minds of those who might be deterred. I have evidence of that myself, on which I will elaborate if you wish me to. The fact is that it is very difficult to get to the United Kingdom now to claim asylum. That is why more and more people are putting themselves in the hands of smugglers or, even worse, in the hands of traffickers in order to escape persecution.

Q 68

David Davies: I am interested in that answer. May I ask a slightly more specific question on the detention at ports? Are you supportive of giving immigration officers extra powers to detain people on arrival or do you think that perhaps there is no need for them to do so?

Keith Best:   We do not have a problem with immigration officers being given the powers necessary to protect the borders of the United Kingdom properly, as long as they are accountable. It can well be argued that it is preferable for immigration officers to do that rather than the police, who have other duties. We have no difficulty with immigration officers being given extra powers per se as long as those powers are properly accountable and particularly accountable to a proper complaints system. We have mentioned that in our evidence.

David Amess: We inadvertently strayed on to detention at ports. Before we come to that matter, do hon. Members have any questions of a general nature that they wish to put to the witnesses?

Q 69

Damian Green: Your members operate at the sharp end of the system and therefore you will know as well as anyone the huge number of problems that both the immigration and the asylum systems face. In your view, is this Bill facing up to the biggest problems or is it missing some areas? Are there areas that it might actively make worse?

Q 70

Keith Best: The overall impression that one gets from a cursory understanding of the Bill—most of the general public will have no opportunity to get anything better—is that all the provisions make life uncomfortable for immigrants in every respect. Whether that is something that the Government intend is a matter for Mr. Byrne to answer, not for me, but it is the overall impression.
We are concerned that there is inherent in the Bill the assumption that there does not need to be the kind of accountability that we think there should be, although I respect the views of Ministers when they say that there should be greater accountability for IND. For example, taking away rights of appeal—that was done in the 2006 legislation, albeit it is not yet implemented because it will be rolled out with a points-based system—and further restrictions on appeal rights enshrined in clause 19, are ways of making the whole system less accountable.

Q 71

Damian Green: When you say it will make life more difficult for immigrants, will it make life more difficult for legal immigrants as well as illegal immigrants?

Keith Best:   That must inevitably follow from clause 16. The way clause 16 is drawn, widely as it is, means that it could apply to students or to anybody coming here under an immigration category. One can imagine the plight of a working holiday maker who wants to get around the country and see different parts of the United Kingdom for the purposes of their holiday who is told that they have to reside in a particular place and to report regularly.
We cannot see why the clause is so widely drawn when, in fairness to the Minister, he is giving examples of where he wants to see it applied. My understanding is that it will apply particularly to foreign criminals who cannot be removed and also to unaccompanied asylum-seeking children when they reach the age of majority. If that really is the Government’s intention the clause should be drawn as restrictively. The danger is that it leaves it wide open for it to be applied much more widely and make life much more difficult for people who do not really need these restrictions.

Q 72

Kerry McCarthy: May I follow up what you said about the Geneva convention being too tightly drawn? I am interested that you said it is not enough for somebody to come from a certain country. For example, I have a lot of asylum seekers and refugees in my constituency from Somalia, where we know that anybody—at least in the southern part—is likely to be caught up in a pretty dangerous situation. Where do you draw the boundaries? You seem to be saying that they are drawn too tightly at present, in that someone has to prove that they are at specific risk. Where do you suggest the boundary be drawn? Would you say that anyone coming from Somalia ought to be given refuge?

Keith Best:   Sadly, the international situation is a lottery and the great majority of the world’s refugees are women and children. If they are lucky, they get across one international border—no more, for fairly obvious reasons such as a lack of mobility. In a way, Britain has been the unwitting beneficiary of those fleeing persecution who are the most useful to the country where they end up, because they tend to be young, male, fit, healthy and capable of work—and, often, people with qualifications and multi-linguistic skills. You could almost say that those are the crème de la crème of the world’s refugee population. We do not see too many of the really dispossessed people coming to this country, because they have neither the money nor the physical stamina to get here.

Q 73

Kerry McCarthy: Are you saying that we ought to make it easier for people who fall into those categories of the dispossessed, and how would we go about changing that law?

Keith Best:   It is outside the scope of this Bill, but we have considerable interest in some initiatives that have been mooted both domestically and in the EU—and, indeed, by the United Nations High Commissioner for Refugees—to try and create a better international system: one where you have not only the removal of persecution at source, so you do not generate refugee flows, but a better system of identifying who are the refugees, which of them need protection and where those people can seek it.

Q 74

Kerry McCarthy: So, you identify them before they reach the UK borders?

Keith Best:   I am so old that I remember the Vietnamese boat people; I was involved with them. I remember the Geneva agreement, whereby countries agreed to take so many from Hong Kong and so on. Now, it would probably be impossible to do that on a global scale with several million people, as some 16 million people or so are at risk in the world. Nevertheless, something approaching that way of dealing with the matter will, ultimately, be needed to have proper burden sharing among countries around the world and deal with those who are in need of protection.

Q 75

Paul Rowen: I am interested in your last remark, because the Home Office has a scheme at the moment where 50-odd people from the Congo have been settled in my Rochdale constituency. At the same time, I have had cases of asylum seekers from the Congo being deported. What should the Government be doing to try and get a consistent policy regarding refugees?

Keith Best:   I applaud the gateway system that brings in those who are recognised as refugees into the country. I believe that Mr. Blunkett announced that initiative when he was Home Secretary. In the sector where I work, I think that we are all very sad that more people have not been given the opportunity to come in by that particular way. We are only talking about hundreds of people.

Q 76

Paul Rowen: Finally, a lot of clauses in the Bill deal with unaccompanied child asylum seekers. What are your general concerns on what needs to be done to deal with some of them?

Keith Best:   I think that we are now talking of about 3,000 children a year coming into this country; there are around that number falling into the category of unaccompanied asylum-seeking children. They need particular care; certainly, they need care that will give them direct and immediate access to legal advice, so that they can be assisted in their claim. They also need to be treated sympathetically when they reach that magic age of 18, because it is a traumatic event to be told that, on your birthday, you will no longer be given any kind of protection and you will be removed. So there needs to be sensitivity.
One of the problems that we have seen, particularly in Oakington, where we operate as the agency giving legal advice to all those going through the fast-track system, is the age-disputed cases. It is a particular problem because even when you get a doctor or social services trying to adjudicate on an age-dispute case, they can only really give a bracket of about three years. It is notoriously difficult to try to fix the age.

Q 77

Liam Byrne: Mr. Best, I was following your evidence with great interest and attention and I just wanted to check something. From your remarks, may I infer that you would support measures in the Bill to strengthen the oversight, transparency and accountability of IND?

Keith Best:   Yes, indeed. I welcome the fact that, for example, serious complaints against IND will be dealt with by the Independent Police Complaints Commission; that must be a move in the right direction. You will have more knowledge than I do about what constitutes a serious complaint and what will happen to the other complaints. There is a need for a fast-resolution system of what one might call the minor complaints. They are usually personal complaints against individual staff of IND, because someone has been rude or unsympathetic, or refused to give their name, or something of that nature. I hope that the Government have something in mind to deal with those complaints in a proper way.
The overriding theme of IAS on this subject, however, is accountability, and accountability can come in many ways. One of the material aspects of accountability, to make it transparent and acceptable, is independence and if there is not going to be that element of independence, I fear that any system will fall down and will not gain public confidence. That is why we have been so vocal in seeking to preserve rights of appeal, because we see that as a proper way of ensuring accountability; you have an independent judiciary that examines matters independently of the Government.

Q 78

David Davies: Is it not the case that the appeal system has been somewhat abused and that appeal after appeal has been put in for people who really do not merit it, and that it is because of that abuse that some sort of action must be taken to reduce the number of appeals?

Keith Best:   Of course there has been some abuse—it would be idle to pretend otherwise. There is abuse in every system; there is abuse in the social security system, and I understand that there is abuse even in the Inland Revenue, but that does not mean that that invalidates the whole system and you sweep it away. Our concern is that the abuse has been used as an excuse to strip away rights of appeal, when it should never be used for that reason.
In its report, the Home Affairs Committee set out very well its concerns about the present appeal system, whereby, particularly for some cases, the appeal system seems to be the first hearing instance of much evidence that comes its way, because that evidence was not presented earlier. That may not necessarily be the fault of the applicant or the appellant at that stage; there is a variety of reasons why evidence that is cogent and necessary for a particular application is not delivered when it should be. That is why we have some sympathy with the Home Affairs Committee’s recommendation that there should be a “minded to refuse” stage, particularly for overseas refusals, to give people an opportunity to remedy a defect, for example if they have been unable to submit a document that is material. We do not have a great deal of confidence in the idea of a so-called administrative review, not least because we have not seen the details of what that review will consist of at posts overseas and how transparent and independent it would be, in order to take account of my earlier contention about what is needed for a measure to gain public confidence.

Nicole Shepherd:   It must be remembered that just because an appeal is not successful, it does not mean that it did not have an argument to be made. A distinction must be drawn between an abuse of the appeals process and someone who just did not win for whatever reason. They are not necessarily abusing the process.

Q 79

David Davies: Do a majority of appeals succeed?

Nicole Shepherd:   I would say it is about 50:50.

Keith Best:   The ones we deal with do.

Nicole Shepherd:   The IAS has a much higher success rate than unrepresented clients. Overall, it would be fair to say that it was about 50:50. Our current success rate is about 90 per cent. in some cases on immigration appeals. That is obviously less with asylum because there is so much more scope.

Keith Best:   There is a lot of evidence going back some distance. It must be 20 years old now, but I remember the report of Professor Hazel Genn, who looked at the question of those who were represented and those who were unrepresented in immigration appeals. It clearly showed that there was a higher success rate for those who were represented.

Q 80

David Davies: What percentage of IAS asylum appeals succeed?

Keith Best:   It very much depends on different categories.

Q 81

David Davies: Overall. It is more than 50:50?

Keith Best:   Oh yes. More than 50 per cent. succeed. I am hazarding a guess here, but we can let the Committee have the figures. I would say that it is 60 to 70 per cent. overall.

Stewart Jackson: I have two quick questions. On the specific issue of unaccompanied child asylum seekers, Mr. Best, in your practical experience are the Government doing enough to offset the financial burden that is suffered by a small number of local authorities, principally in west London? They have really struggled with that issue. Secondly, I thought the submission from the IAS was very good. Surprisingly, I do not disagree with all of it. You say that public confidence in the system will be engendered only when statistics give an accurate picture of who is entering and leaving the UK every year. Previous witnesses have made that point. Do you think the Bill will have any meaningful impact on protecting our borders unless the Government adopt a policy of proper record-keeping and database management?

Keith Best:   To answer your first question first: the problem of unaccompanied asylum-seeking children, in so far as it is a financial and administrative burden on authorities, clearly needs to be dealt with centrally by central Government. Kent county council has had much to say about this in the past. I see Mr. Green nodding. No doubt he has a constituency interest. I am not in a position to say whether the Government are adequately compensating local authorities for that or not. All I can say is that in principle I believe that that sort of burden is a central rather than a local authority burden.
On your second question, we have long advocated proper embarkation controls. We feel that public confidence in the immigration system will only be regained if people know that the statistics they read about are verifiable and accurate. It is not good to run a whole system—sadly the Government seem to make policy decisions based on this kind of information—on the international passenger survey, which samples only 2 per cent. of passenger movements. It says that anyone who comes into this country for more than 12 months is coming as a permanent immigrant and that anyone leaving for more than 12 months is a permanent emigrant. A lot of it includes you or me going on holiday. It is not good to try to base an immigration system on those sort of figures. If one is to deter—as one should—abuse of the immigration system, particularly by overstaying, it is essential to know how to count out the people who come in to see whether they have left the United Kingdom at the end of their limited leave to remain.
I applaud the Government for bringing in e-Borders. I am sorry that it will not be fully rolled out until 2014. We have been advocating it for a long time. I appreciate that it cannot be done on paper, but that it must be an electronic exercise. Unfortunately, the history of the association of the Home Office with technology has not been particularly felicitous. We can only hope that it will work and will actually give the public the statistics on which we can have a proper reasoned debate rather than one that is based on prejudice.

Q 82

Chris Mole: I just want to follow up on that point. You say that you welcome e-Borders and the need to count in and count out. Do you agree that an essential component of that is a clearly verifiable identity check of some sort, so that we know exactly who is being counted in and who is being counted out?

Keith Best:   Certainly. You need to know that the identity of those leaving is the identity that they purport to have. That is being done through the fingerprinting system. The biometrics that are being rolled out now are more and more through entry clearance posts overseas. I hope that that will have a marked effect on removing the duplication of applications, so that when someone has been refused in one identity, they are not likely to come back and try to be accepted in another identity. I am told that in Pakistan at the moment there is a lively trade of false exit stamps being put in passports to show that people left the United Kingdom at a particular time when, clearly, they did not. However, that is anecdotal evidence.
There needs to be that check. It is not for me to decide whether that should be the full extent of a chip identity card or whether biometrics—to use the fingerprinting terminology—will be sufficient.

Q 83

Jamie Reed: On that point, is it your view, Mr. Best, that the lack of transparency and the insufficient information held about people entering and leaving the country informs and inflames the prejudice that surrounds the whole debate?

Keith Best:   Sadly, there are lots of reasons why this is such a tendentious subject and leads to such strong feelings. I fear that the Government have not fully appreciated that the deterrent measures against asylum seekers, including being dragged through the courts and found wanting on human rights legislation, which has upset many of us who take a pride in our country, only fan the flames of racism. When you legitimise in that way, using a particular section of the population as a scapegoat by reference to a common characteristic such as being asylum seekers, unfortunately evidence shows that that translates directly into violence being visited by a mindless thug against someone whom they assume is an asylum seeker, but who is probably a third-generation British citizen. That is one of the problems and, although I do not think that my views have been accepted, I have been at pains to point out to the Government that that sort of deterrent measure has that inevitable consequence.
The other reason why we have such a tendentious debate about such matters is the absence of proper statistics and knowledge. I fear that that is a major component. I applaud the Government now taking measures to improve the statistics. It may be that one has to go further down that route. A former Immigration Minister, Barbara Roche, has now called for an independent statistical service to do this and increase public confidence, and that may be something else that has to be done. Certainly people will not be able to have a proper debate, and therefore there will not be confidence in the system, unless they know that the figures on which the Government are basing their policy, and on which the public and press are basing their debate, are proper.

Q 84

Kerry McCarthy: I am interested to know whether, in the cases that you see at the IAS, you see many examples of people who, when they make their initial asylum claims, use false identities because they are somehow led to believe that it will help them and that it will be easier for them to gain asylum, only to be rejected as they work through the system because their identity is false and then come to you with their real identity.

Keith Best:   I will ask Ms Shepherd to answer.

Nicole Shepherd:   It is less an identity issue and more one of being fed what they are told by agents is a good story to claim asylum with. I certainly have seen people who have used false identities to claim asylum, or certain aspects of their identity has been false—it is not the whole identity that they falsify. Sometimes it is their date of birth, sometimes their country, but they use their real names and family details. Certainly there is a healthy trade in what is good to claim asylum with, from agents and people who assist in entering the UK falsely.

Q 85

Kerry McCarthy: Does that often turn out to be wrong?

Nicole Shepherd:   I have to say that of the ones that I have seen a significant proportion, had they told the truth straight off, would have had a much better claim for asylum, but they were given stories. The stories fall apart because they do not know them and they are not their own stories, so they are seen as liars. When they come up with the real story, because they are seen as liars, why believe the second story when the first one was false? They are automatically branded as liars and from then on it is so much harder.

Keith Best:   I endorse that view. This is a problem not just in asylum but in immigration as well. There are still enormous numbers of rogue advisers, both in this country and particularly overseas, who will take an applicant’s perfectly legitimate details, which would probably succeed in an application, and then ruin them by telling the applicant that they cannot tell that story and they have to tell another one or have a false document. They then sell them one under the table—there are things of that nature. I am afraid that we see a lot of examples, particularly in our overseas offices, of people being advised, wholly unscrupulously, to tell a completely false story to an entry clearance officer in order to succeed. Of course, they do not succeed, because as Ms Shepherd says, as soon as the forged document or the duplicitous nature of the application is spotted, that is the end of it. They are refused.

Q 86

Kerry McCarthy: Do you think that the measures in here about biometric registration and more proof of identity will in any way help to address that, or does it not really hinge on identity?

Keith Best:   No, identity is not the problem.

Q 87

Kerry McCarthy: There are certain factors such as age or which part of their country they come from, or the actual country they come from. In my constituency there are people who claim to be from Somalia but are actually from Kenya or Ethiopia and have Somali descent. If there were a requirement to prove their identity, would some of those factors be nailed down?

Keith Best:   Of course what you say is correct. I am not sure how somebody in Somalia is going to be able to prove their identity when there is effectively no central Government or registry office. That is the problem, and of course people are told different stories. Some people who are clearly minors pretend to be adults because they think that they will be treated better that way, and vice versa. It is a major problem to try to get to people who want to come to the United Kingdom to tell them that honesty is the best policy and that they will make a mess of their application if they tell a false story.

Q 88

David Davies: I was interested to see that you have offices in Lahore and in Sylhet in Bangladesh. I understand that the Immigration Advisory Service is mainly funded by the Government. Is that correct?

Keith Best:   We used to be funded by the Home Office. In 2004, under the access to justice provisions, the funding provider was changed from the Home Office to the Legal Services Commission. We are funded by the commission in exactly the same way as any other not-for-profit agency, or indeed as a for-profit organisation that does publicly funded work.

Q 89

David Davies: Just out of interest, why would you have offices abroad?

David Amess: Order. I remind Committee members that we are scrutinising the Bill, rather than having a general debate on immigration.

Keith Best:   I would be happy to correspond with Mr. Davies outside the Committee, Mr. Amess.

David Amess: Thank you.

Q 90

Stewart Jackson: I listened carefully to your reply to Mr. Reed’s question. Obviously you are quite passionate and sincere and I respect that. Would you agree that the mismanagement of the National Asylum Support Service and the lack of transparency and accountability in its actions, which was felt particularly in my constituency, where there was little consultation with the local authority or the regional assembly, contributed to inflaming the debate, particularly around 2002 when asylum figures peaked?

Keith Best:   I think that any act of maladministration, any wrongful decision or any failure to marry up an application for extension of leave, for example, with the original file, with the result that the person concerned has enforcement action taken against them—these are all examples drawn from our case load—unfortunately puts the system into disrepute and opens up the floodgates of criticism of the Government. I hope that that is why the Government are now taking a considerable number of measures to try to improve the administration. They have a long way to go, however, because we are still finding examples of that kind of maladministration. Once that gets into the public domain, I am afraid that it further undermines confidence in the system.

Q 91

Stewart Jackson: So are you saying that NASS was badly managed?

Keith Best:   I do not have sufficient evidence to say whether NASS was badly managed inherently. I know that NASS officials took decisions that turned out to be completely wrong. That is from our experience. That is not to say that the whole system was failing; I am afraid that a common feature of any bureaucracy is that wrong decisions are taken from time to time. The problem arises where the legislative framework enables those wrong decisions to have a dramatically deleterious effect on people’s lives.

David Amess: We now move on to the part of the Bill that refers to detention at ports.

Q 92

Damian Green: I was trying to work out exactly where we were, so that is extremely helpful.
I might expand “detention at ports” to the general use of powers of immigration officers. One of the most striking things that you said in your evidence was that too much enforcement activity is operated against “those most easily available, not the most harmful, such as those who comply with Home Office requirements to report regularly” and families with children. Do you think that that is a serious weakness that is not addressed by the Bill?

Keith Best:   I think that the Minister or one of the Government documents said that part of the five-year plan is to take action against those who are most abusive of the immigration system. You can pick on those that I might describe as soft targets—those reporting regularly, complying with the conditions and doing other things of that nature—but they are not necessarily the ones abusing the system the most. There is a mismatch between those against whom the Government intend to take enforcement action—those regarded as the most nefarious—and those against whom action is actually taken. I can understand why action is taken against them. They are the easiest to pick up and deal with.

Q 93

Paul Rowen: Who do you see the additional powers being directed at the most and what problems will that bring?

Nicole Shepherd:   Clearly, those used to detain people at ports are likely to be directed either at those under reporting restrictions returning to their port of entry, or those on initial arrival. However, I suspect that the powers are more likely to pick up those required to return and sign in to say that they are still where they are supposed to be. That has been the experience to date under the current powers. Evidence within the IAS shows that following the foreign prisoner scandal more intentions to deport have been expressed and that they have been made against those who report as required. That reporting is then used as a jumping-off point in order to detain somebody further.

David Amess: We turn now to biometric registration.

Q 94

Damian Green: I want to pick up on a point that you made in reply to Ms McCarthy. You were discussing the effect of biometrics and new technologies more generally and made the point very gently that the marriage between the Home Office and new technology is often not one made in heaven. Is it possible that the existence of a secure—presumably—identity document in this country could actually increase the amount of fraud? As you explained, people obtain fraudulent documents in order to get here. If they can do that and are then assigned an identity, after which, no questions will be asked because the Home Office will trust this biometrically-based document, could that not increase the amount of fraud in the system?

Keith Best:   There is always the worry that forgers will be one step ahead of the authorities. We have some fears: we are concerned about the impact of the increased use of technology on identity theft and forgery, on the mismatching of details and on transparency—people’s ability to check whether details held on them are accurate. Furthermore, bearing in mind the numbers of people coming to this country as well as EU regulations on residence cards and other things of that nature, maintaining a secure environment is a daunting prospect for any technology. That is our concern. It seems to me, however, that the fingerprinting biometrics seem to be adequate for combating the greatest abuse of duplicate applications.

Q 95

Paul Rowen: I should like to take up your last point. A lot of attention is focused on illegal immigrants and asylum seekers, but a lot of my casework deals with relatives in Pakistan, for example, who want to visit their families. One of my concerns is that already many delays at Islamabad are caused by the visa-issuing process. What practical, on-the-ground problems will the introduction of this technology put on visa-issuing stations?

Keith Best:   First, you mentioned the question of illegal immigrants. We fear that a great opportunity has been missed in the Bill, which could be remedied, maybe, by amending clause 17, to actually deal with something that engenders a great deal of public disquiet and is acknowledged by the Government in their actions to try to combat it: the number of illegal immigrants in the country. We have always advocated a regularisation of the system that would give some people a limited status that could be renewed and would bring them within the tax system, and so on. That would be highly advantageous. I will not labour you with all the details, because they are well articulated.
We are particularly concerned about those who may have failed to establish a legal right to remain in the country, but who cannot be removed for various reasons. These people are literally in a state of legal limbo. They are not allowed to work and are not allowed to do anything else and could be in that situation for a very long time. We feel that that is unacceptable. There will be a rising number of people in that situation.
To come back to your second question about the practicalities, obviously we are deeply concerned about anything that will further delay the process for people. We feel that the Government’s intention, expressed in the phrase “exporting borders”, is a good one. We would like to think that, by the time people arrived in the United Kingdom, they had been fully checked and documented, so that there would be little work for an immigration officer to do—because they would be satisfied that those people had been properly documented at the time of the application. That presupposes all sorts of issues about the entry clearance process.

Nicole Shepherd:   Many of my clients are upset at the repeated fees that they are charged. I suspect that the need to pay for the technology is likely to be passed on in visa application fees, which discriminate against visitors from poorer countries. For those people a once-in-a-lifetime opportunity to visit family members in the UK can, all of a sudden, be a bit further away in terms of the administration cost. One of the biggest concerns is that, even when you succeed in going through a long appeal system, finally getting hold of the visa in your hand can take another couple of months, at best—and sometimes much more than that.

Q 96

Paul Rowen: I am dealing with six months at the moment, in one case.

Nicole Shepherd:   That sounds about right.

Keith Best:   Another problem, of course, when an appeal has been won, is how long it takes for a visa to be issued after that. That is an issue of grave concern to many applicants and is an area where the system just is not working properly.

Q 97

Paul Rowen: May I ask you about children and the use of their biometrics? What is your view on this clause?

Nicole Shepherd:   I understand, from discussions regarding children with other agencies, that there are specific problems with children’s biometrics, because obviously their data change—and it depends how you classify “child” and where you draw the line. I understand that, in the ID legislation that has gone through, there are exemptions for children, because their data change. Beyond that, the best we can say is that it is going to have the same impact as for adults. But if there is a family visit and people are bringing the whole family, more people have to be catered for and it takes longer and costs more.

Keith Best:   Unfortunately, none of these measures is without pain. I do not think that there is any real answer to this. On biometrics, we have already heard of examples where people have been mutilating themselves—their fingers—to try to evade that sort of check. That does not invalidate biometrics and the need to gain confidence in the integrity of the system, but sadly, desperate people will take desperate measures all the time.

Q 98

Jamie Reed: I should like to return to one of the points that you made earlier, following on from other points made recently. In a purely exploratory sense—it may be that the evidence will have to be provided outside this sitting today—where is the quantitative and qualitative evidence that underpins the assertion that I think you made earlier, that fingerprinting is adequate biometric evidence in the main for the efficacy of applications?

Keith Best:   I do not have the technical knowledge to be able to give direct evidence of the adequacy of fingerprinting, so my evidence is second-hand, but based on that of others who are more technically knowledgeable than I am on this subject, that it is very difficult to try to forge a fingerprint, if forge is the right word. A fingerprint is of such an individual nature that it is a pretty secure means of identification. I would like to think that the Government came to that conclusion before they started rolling it out around the world.

Q 99

Damian Green: I want to pick up a point that you made earlier. You said that you welcomed in principle the idea of exporting borders, so that when people arrive here their paperwork is in such order that the immigration officer has not much to do. I gently suggest that we are a very long way from that. We will all have seen the “Panorama” programme a couple of months ago that showed that inside the EU it was very easy to buy 20 passports, and that testing two of those passports, one forged and one stolen, going by Eurostar through Waterloo, for example, you could get into this country. Presumably, if that is true around Europe, it is also true in other parts of the world. So the idea that we are close to a situation in which we can be sure of the paperwork of those arriving here is, frankly, a bit optimistic.

Keith Best:   You may well be right on that, Mr. Green. One of the problems is being able to spot a forged Polish or Czech Republic passport. With the increase in EU membership there are many different passports and people have got to be fairly expert on what the genuine ones look like. One thinks of the relative porosity of the eastern borders of the European Union now, and the very large number of Ukrainians, for example, who come to Poland on a visitor basis but work illegally, not least to backfill the spaces of those who have come to the west to work, especially in care homes and so on. Once you are within the borders of the European Union there must be a tremendous temptation to get hold of a somewhat obscure European Union passport and travel around the EU on that.

David Amess: We now turn to the part of the Bill that deals with the treatment of claimants.

Q 100

Damian Green: It is already clear from the written evidence and from the oral evidence we have taken today that clause 16 is one of the most controversial in the Bill. You and others have argued that it is too all-encompassing, that it does not seem particularly well directed, and that it gives fairly draconian powers. What would you do to improve it?

Keith Best:   If the Government have perceived a particular problem with a particular category, the Bill should deal with it. Mr. Byrne has already mentioned those categories to which I referred earlier and we could debate whether they are really a problem or not. But the way the Bill is drafted makes it so wide that it could be used in a way that could greatly incommode a lot of perfectly legitimate, law-abiding people who have come to this country under the immigration rules and find themselves suddenly being told that they have got to report or to live in a particular location.

Q 101

Paul Rowen: You mentioned earlier your support for asylum seekers being able to work. Are you happy that clause 17 closes the legal loophole about support for asylum seekers while the appeal is still going on?

Nicole Shepherd:   I believe so, yes.

Keith Best:   Yes. We think that is the case.

David Amess: If there are no other questions, we move on to other enforcement issues.

Q 102

Damian Green: This part of the Bill deals with expanded powers to seize cash and so on. Do you see that as posing any threat of unnecessary intrusion, particularly on newly arrived workers who are quite likely to be badly paid?

Keith Best:   There is that danger. Unfortunately, in the UK with immigration control we have so many people coming from so many different parts of the world, not least because of our legacy of empire and the Commonwealth and the fact that institutions in so many other countries are based on ours, and the fact that we still represent one of the most—if not the most—culturally, linguistically and religiously diverse societies in Europe for those reasons. Many people come from other countries perfectly legitimately to visit their relatives. But unfortunately, some of those countries have become notorious for abuse of the immigration system in terms of forgeries or fraudulent applications.
The problem is that, when we start dealing with those issues, it becomes apparently discriminatory. That is set out also in the successive reports of the independent monitor. The one before the latest report talked of a stereotyping of Bangladeshi nationals in refusals of entry clearance by entrance clearance officers there. There is an inherent problem that, whenever measures of this nature are introduced—whether forfeiture of cash or whatever—they will be employed in a way that will then be seen to be discriminatory.

Q 103

Damian Green: Is there any evidence that that happens now?

Nicole Shepherd:   I cannot say about seizure of cash, but there are certainly a number of cases from the asylum and immigration tribunal in which entry clearance officers have been quite strongly found against for cut-and-paste refusals along the lines of “You are from a poor country, therefore you will break the law”. Such cases have had to go to a higher court to be tried. You are not now allowed to find that, just because somebody is poor, they are a criminal. There must be something more in that person’s evidence or some circumstances that indicate they may break the law, other than their just being from a poor country.

Q 104

Chris Mole: Mr. Best, is your argument not an argument against any of the clauses in the Bill, but an argument for effective diversity training within the immigration and nationality department?

Keith Best:   Yes, there is a clear need for that. I hope to have indicated in my answer that, to a certain extent, when there is clear evidence of abuse that obtains in some countries rather than others, it is almost inevitable that there will be a prejudicial assumption against nationals from those particular countries; and if those particular countries have citizens of a particular ethnic background, it will be regarded as discriminatory. That is very unfortunate. It does not invalidate the system, but it means that you have to be more careful. You have to scrutinise more fully the decisions that are taken in respect of those particular countries so as to avoid stereotyping.
 It goes outside the remit of the Bill, but one of the things that we have advocated in order to remove the sort of prejudice that exists in people who do the job day in, day out is to recruit entry clearance officers far more widely. I can think of all sorts of university leavers, for example, who would welcome two years in Beijing learning Mandarin at Her Majesty’s Government’s expense and enhancing their career prospects when they leave, who would come to the job of an entry clearance officer without any baggage or prejudice inherent in what they have done beforehand and who would approach it with an open mind.
The Government must grapple with measures such as that to ensure that the people who administer the system are not so hidebound in what they have been doing beforehand that they almost subliminally—I acquit people of doing it consciously in most cases—feel that sense of prejudice because of what they have been dealing with in the past.

David Amess: I thank our two witnesses for appearing before the Committee and giving evidence but, sadly, that concludes our proceedings according to the knife for time available.

It being half-past Six o’clock, The Chairmanadjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till Thursday 1 March at Nine o’clock.